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Second Refusal to Submit to DUI Testing

In order to discourage individuals from refusing to submit to a chemical test a second time, the Florida legislature decided to create a separate crime for a second refusal, Florida Statute Section 316.1939. The law recognizes the possibility that a person can avoid a DUI conviction by repeatedly refusing to take a breath test after each DUI arrest. For this reason, the new criminal offense related to a second refusal was necessary to discourage the second or subsequent refusal.

Florida Statute Section 316.1939 makes it a separate crime to "refuse to submit" to a chemical test of the driver's breath, blood or urine after having previously refused to submit. This charge for the second or subsequent "refusing to submit" to DUI testing is a first-degree misdemeanor offense punishable by up to $1,000 fine and 12 months in the county jail.

It is very difficult to win these cases at trial because the jury KNOWS that the defendant was caught before for DUI and previously refused to submit to a chemical test. Normally, such "prior bad acts" evidence would be excluded as irrelevant and unduly prejudicial. But evidence about the prior refusal (or at least the driving record showing the prior refusal) is admissible in these cases because it is an element of the offense.

What should you do if you are charged with a separate crime for a second refusal? The most important thing you should do is hire an attorney within 10 days of the arrest to DEMAND a formal review hearing to contest the administrative suspension of your driver's license for the second refusal.

Attorney for a Second Refusal in Tampa, FL

If you were charged with a second DUI refusal, then contact an experienced DUI defense attorney in Tampa, FL. The problem with a second refusal is that you are facing a 18-month hard suspension on an administrative basis. This hard suspension begins 10 days after the arrest. Therefore, it is especially important in these cases to demand a formal review hearing within 10 days of the arrest.

Additionally, prosecutors treat these cases very seriously and are reluctant to reduce the underlying DUI refusal case to reckless driving in these cases. You need to aggressively fight these charges in order to get the best result.

Contact an attorney for drunk driving defense in Tampa, Hillsborough County, FL. Call 813-250-0500 to discuss your case during a free and confidential consultation.


Avoiding the 18 Month Hard Administrative Suspension

Keep in mind that the biggest problem with a second administrative suspension for a refusal is that you will suffer an 18-month hard suspension. This means you will NOT qualify for a hardship license during any part of the 18 months.

The only way to avoid the 18-month hard suspension on an administrative basis is to CONTEST the 18-month suspension during a formal review hearing. For this reason, it is important to hire a DUI defense attorney to demand the formal review hearing within 10 days of the arrest.

Your attorney can also help you obtain a 42 day permit so that you can keep driving to work, church and school while your attorneys prepares for the formal review hearing. Since you will not qualify for any time of hardship reinstatement, it is particularly important to get the 42 day permit which eats into the 18 month hard suspension.

For all of these reason, it is important to hire a DUI defense attorney to demand the formal review hearing within 10 days of the arrest. Plus, the information obtained at the formal review hearing might also help you fight the criminal charges later in court.


Elements of a Second DUI Refusal in Florida

This punishment is in addition to any punishment for the DUI conviction. To prove the offense of refusal to submit to DUI testing after a prior refusal, the prosecutor must prove the following six elements:

  • An officer had probable cause to believe to an individual drove a vehicle (or was in actual physical control of a vehicle) while under the influence of an alcoholic beverage or a chemical or controlled substance to the extent that his normal faculties were impaired.
  • An officer requested that the individual submits to chemical testing after a DUI arrest (or after the individual was taken to a hospital after being involved in a car crash);
  • The law enforcement officer read the individual Florida's implied consent warning which says that refusal to submit to the chemical test of breath, blood or urine will cause a suspension of the privilege to drive a motor vehicle for a period of twelve months for a first offense, or in the case of a second or subsequent refusal, for a period of 18 months.
  • The law enforcement officer told the individual that it is a misdemeanor to refuse to submit to a lawful chemical test of his blood, breath or urine if his driving privilege had previously been suspended for a prior refusal to submit to a lawful chemical test of his blood, breath or urine.
  • The individual, after being told about Florida's implied consent warnings, and the fact that another refusal was a new criminal offense, still decided to refuse to submit to a chemical test when requested to do so by a law enforcement officer.
  • The individual's privilege to drive had, in fact, been previously suspended for a prior refusal to submit to a chemical test of his breath, blood or urine.

The jury is allowed to conclude that the individual's driving privilege had been previously suspended for a prior refusal to submit to a lawful test of blood, breath or urine if the driving record from the Florida Department of Highway Safety and Motor Vehicles (DHSMV) shows such a suspension. 

In fact, the statute itself creates a rebuttable presumption of the prior refusal if the department’s records showing that a person’s license has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood.

The term “probable cause” is defined to mean "where the totality of circumstances, from the perspective of the law enforcement officer's knowledge, training and experience, gave the officer reasonable grounds and a fair probability to believe that a crime had been committed."

The term "motor vehicle” is defined to mean any self-propelled vehicle not operated upon rails or guide-way, but not including any bicycle, motorized scooter, electric personal assistive mobility device, or moped.

Under the statute, the triggering event is the prior suspension by the Florida DHSMV. Therefore, even if the person was not successfully prosecuted for DUI, the person could still be prosecuted for the second refusal.


Prosecutions for a Second DUI Refusal in Florida

Relatively few cases exist dealing with a prosecution for a second or subsequent refusal to submit to testing after a DUI arrest in Florida. In State v. Busciglio, 976 So.2d 15 (Fla. 2d DCA 2008), the Second District Court of Appeals found that a driver that was facing a second refusal did not have a right to counsel under the Florida constitution at the time he was asked to submit to a breath test.

The Court reasoned that the question was not an interrogation. Furthermore, the Court held that the answer was not a testimonial response triggering the right against self-incrimination under the Fifth Amendment to the United States Constitution.


The Administrative Suspensions for a Refusal

Within ten days after the arrest, you must take action to protect your driver's license. If you do nothing, your driver's license will be suspended for one year after a first refusal or eighteen months after a second or subsequent refusal. Within the first ten days, you can demand a formal review hearing to contest the administrative suspension. 

While your attorney fights the formal review hearing, we can help you obtain a 42-day permit. If you win then the administrative suspension is completely lifted from your driving record. If you are not able to invalidate the suspension, then your 90-day hard suspension will begin. On the 91st day, you can seek a hardship license as long as you have enrolled in DUI school.

The law changed on July 1, 2013. Now, if you have no prior DUI arrest, then you can seek immediate reinstatement to avoid the 90-day hard suspension. The downside of seeking immediate reinstatement is that you must forever waive your right to the formal review hearing to contest the administrative suspension.

It is also more likely that you might win the administrative suspension because after July 1, 2013, if the arresting officer or breath test operator fails to appear for the hearing then the administrative suspension is automatically invalidated and erased from your driving record.


Challenges to the Second Refusal in Florida Statute § 316.1939

If you were charged with a violation of § 316.1939, Fla. Stat., for a second refusal to give a breath, urine or blood test, then contact an experienced criminal defense attorney in Tampa, FL, at Sammis Law Firm.

Keep in mind that a conviction under this statute requires proof that a person has a prior license suspension because of a prior refusal to take a breath test. Under the statute, finding a first refusal itself is not an element of the offense; rather, it is the driver's license suspension that is an element of the offense. Fender v. State, 980 So. 2d 516 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D2163b].

In many of these cases, the criminal defense attorney will file a motion to dismiss the misdemeanor “refusal to submit to testing charge” by bringing a challenge to Florida Statute Section 316.1939 as unconstitutional for the following reasons:

  • the statute is facially unconstitutional because of the underlying procedures used to find a first refusal when a hearing officer is not competent to make legal conclusions;
  • the procedures for the finding of the underlying first refusal violate due process;
  • the statute imposes criminal liability based upon a prior refusal to submit to a breath test, when the prior refusal is proven by a preponderance of the evidence rather than beyond a reasonable doubt;
  • the statute causes a violation of the right to counsel because there is no right to counsel concerning a refusal, or requirement of Miranda warnings;
  • due process rights are violated because the defendant is not otold that an initial suspension could be used as a predicate act or criminal charge in the future;
  • there is an ex-post facto violation;
  • the procedures breach the agreement between the licensee and the State;
  • the statute is void for vagueness and overbroad;
  • the statute violates double jeopardy;
  • the statute violates the single subject rule;
  • it violates the exercise of the constitutional right to be free from unreasonable search and seizures, specifically, the constitutional right to refuse to consent to a warrantless search.


Additional Resources

316.1939 Refusal to submit to testing; penalties - Visit the website of the Florida Senate to find the 2015 version of Florida Statute Section 316.1939, which makes it a crime to refusal to submit to a breath test if the driving record contains a prior administrative suspension for a refusal. Find out why the disposition of any administrative proceeding does not affect a criminal action under this section and why the disposition of a criminal action under this section does not affect any administrative proceeding that relates to the suspension of a person’s driving privilege.


This article was last updated on Friday, May 18, 2018.